[2022] KEHC 10657 (KLR)

Republic v Thomas Sifuna alias Edwin (Criminal Case 6 of 2020) [2022] KEHC 10657 (KLR) (10 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10657 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Case 6 of 2020

SN Riechi, J

May 10, 2022

Between

Republic

Prosecution

and

Thomas Sifuna alias Edwin

Accused

Judgment

1. The accused Thomas Sifuna alias Edwin is charged with offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.

2. The particulars of the offence are that on the 11th day of January, 2020 at Sio village in Bungoma South Sub-County within Bungoma with others not before court murdered Christopher Wabwire.

3. The prosecution case is that on 11. 1.2020 at 12 p.m. PW1 Antonina Wamalwa the mother of the deceased was at her home when Raphael Rapando and Wycliff Rapando came to her home riding on a motor cycle and asked her where deceased was. She told them she did not know and they went away. At 10 p.m. she was asleep when she heard people calling the deceased. Deceased was not there and they left. At 1 a.m. the deceased had come and was in his house when she heard people call him and asked him to open the door. She also opened the door of the house where she was sleeping. She saw the deceased come out and join the accused. Rapando Raphael and Wycliff Rapando and other people she did not know. She was able to see them as they flashed a torch to enable deceased to tie his shoe. They left with deceased.

4. The next day she was informed the body of deceased had been found at the PAG church. Police came and took the body away.

5. PW2 Mohameed Wanjala Yusuf was asleep at house of Abdalla Hassan when he heard screams. He woke up Hassan and they went to the road. At the road he saw Wycliff who was armed with a panga. He was telling aperson to stand up. On seeing this witness Wycliff told them to go back. He did not see the person who was being asked to stand up. He also saw Roy armed with iron bar, Killi armed with a rungu. He went back and slept. The next day he founded accused drinking alcohol at a nearby home wearing clothes which had blood stains. He told them that they had finished Terminator – the deceased. He went to PAG church where he found the body of deceased.

6. On being cross-examined by Wekesa for the accused, he stated that on that material night at the road he recognized Wycliff, Roy, Kevin Rapando and the accused. He stated he only saw Killi and Roy who were beating the deceased. He also stated that the next day the accused did confirm to him that they had finished Terminator another alias of the deceased.

7. PW3 Francis Xavier Musebe whose business is to transport goods using his donkeys was on 11. 1.2020 approached by Rapando and Wycliff who alleged that he steals tyres. He denied the allegation and informed them he had transported tyres from Palanga and took them to Emmanuel. The next day he received information that deceased had been killed. He confirmed in cross examination that he did not k now who killed the deceased.

8. PW5 No. 67661 Segt Churchil Owino the Investigating Officer took over the Investigation in a murder case reported at Bungoma police station vide OB No. 19/12/2020. He met the relatives of the deceased who recorded statements. The next day a post mortem was performed on the body of deceased in presence of the relatives. On 17. 1.2020 he went to where accused was employed and arrested him. The other suspects who had been mentioned escaped. On being cross-examined by Wekesa he started that the deceased’s body had been removed from the scene by police officers from Bungoma police station. He also testified that accused had recorded statement which as a confession.

9. PW4 Dr. Ely Kosgey who produced the post mortem report prepared by Dr. Musa Ochieng who performed the post moterm on deceased testified that the deceased had multiple cut wounds on left hand, leg measuring 4 cm long, swelling on the right thigh, dislocation of left shoulder and swelling on back of the neck. Deceased had also fracture of the cerebral spine. He formed opinion that the cause of death was due to cervical spine injury.

10. The accused Timothy upon being put on his defence gave sworn evidence. He testified that he works as a watchman at St. Teresa’s Secondary School. On 11. 1.2020 he was at his house and slept at 8 p.m. At 1. 30 p.m. he heard noise of people quarrelling outside. He went outside and noticed the noise was from the home of Mutachi. He went there. He met Mutachi who was armed with a panga. Mutachi told him there were people chasing him. He did not see them and he went to his house and slept.

11. On 12. 1.2020 he went to his place of work and did not meet Mohamed (PW2). On 17. 1.2020 while at his place of work he was arrested by police.

12. Mr. Wekesa for the accused filed written submissions. He submitted that the cause of death had not been proved. He submitted that PW1 the deceased’s mother testified that she did who killed her son; PW2 Ahmed told court that he witnessed the incident from a distance of 80 meters, and PW3 testified he visited the scene but could not tell whether it is accused who killed the deceased. He therefore submitted that he prosecution had not proved its case beyond reasonable doubt.

13. The accused is charged with the offence of murder contrary to Section 203 of the Penal Code. Section 203 provides:“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”

14. From the provisions of Section 203 above, the elements of the offence which the prosecution must prove against the accused beyond reasonable doubt are:a.The death of the deceased.b.The unlawful cause of deathc.That in causing death the accused committed it with malice aforethought.d.That there is direct or circumstantial evidence placing the accused at the scene of the crime.

15. The death of the deceased was proved by the evidence of PW4 Dr. Ely Kosgei who produced the post mortem prepared by Dr. Musi Ochieng. Dr. Ochieng after examining the body found he had cut wounds and more specifically had a fractured cervical spine. He formed opinion that the cause of death was due to the fracture of the cervical spine.

16. It was the fractures of the cervical spine due to injury that caused the death of deceased.

17. Was the injury caused by the unlawful act or omission of the accused? In other words, was the accused either alone or with other persons who committed the offence? The prosecution can prove so by direct evidence of eye-witnesses or by proving facts or circumstances which will lead the court to form an inference that it is accused and no other who inflicted the injuries.

18. PW1 Antonina Wamalwa the mother of the deceased testified that she saw Pachu who is the accused, Rapando Raphael and Wycliff Rapando and others leave with the deceased. She testified that she was able to identify them from the torch they had. They then left with the deceased. PW2 Mohamed Wanjala testified that when he went to the scene that night he saw Wycliffe who was armed with a panga, Roy armed with Iron bar, and Killi who was armed with a rungu. He said those are the only ones he saw and only met the accused the next day. Later in his evidence he stated he the accused armed with a rungu at the scene. These are the witnesses who testified that as per PW1 Antonina, she saw accused among the people who left with deceased, and PW2 Mohamed who testified that he saw accused at the scene, where deceased was.

19. These two witnesses agree that the incident occurred at night, according to PW1 Antonina, at 1 a.m. and according to PW2 Mohamed who put it at 1 a.m. What was the state of lighting?

20. PW1 Antonina in her cross-examination stated:“When they came at night I only saw they were armed with a rungu. I don’t know how to read. I recorded statement at police. I told police who wrote down. I said there was electric light at neighbours home but would not light deceased’s home.”

21. PW2 Mohamed Wanjala upon being cross-examined by Wekesa counsel for accused stated:“The house where we were was about 50 meters from the scene where screams were from. There was moonlight and we had a torch. There were about 8 people at the scene. I recognized Wycliff, Roy,Kevi and Rapando. I did see the accused present too. It is Kevi and Roy who were beating deceased.”

22. The positive identification of an accused person as the perpetrator of the offence is an important aspect of the criminal justice. This is so because of two reasons (a) that an offence is committed by a person or entity and (b) that principles of sentencing are targeted at an offender who suffers for the offence or crime against society.

23. In Wamunga –v-s Republic 1989 KLR the court of appeal in addressing the issue of evidence of identification stated:"It is trite law that where the only evidence against a defendant is evidence on identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of a conviction”

24. In Criminal Appeal No. 24 of 2000 Paul Etole& Reuben Ombima versus Republic, the Court of Appeal reiterated the need for caution. It stated as follows; “The appeal of the 2nd appellant raises problems relating to evidence and visual identification. Such evidence can bring about miscarriage of justice. But such a miscarriage of justice occurring can be much reduced if whenever the case against an accused person depends wholly or substantially on the correctness of one or more identifications of the accused, the court should warn itself of the special need for caution before convicting the accused. Secondly, it ought to examine closely the circumstances in which the identification by each witness came to be made. Finally it should remind itself of any specific weakness which had appeared in the identification evidence. It is true that recognition may be more reliable than the identification of a stranger; but even when witness is purporting to recognize someone who he knows, the court should remind itself that mistakes in recognition of close relatives and friends are sometimes made. All these matters go to the quality of the identification evidence. When the quality is good and remains good at the close of the accused’s case the danger of mistaken identification is lessened, but the poorer the quality the greater the danger. In the present case, neither of the two courts below demonstrated any caution. This is a serious non-direction on their part. Nor did they examine the circumstances in which the identification was made. There was no enquiry as to the nature of the alleged moonlight or its brightness or whether it was a full moon or not or its intensity. It was essential that there should have been an enquiry as to the nature of the light available which assisted the witnesses in making recognition. What sort of light, its size and its position the vis-à-vis the accused would be relevant.”

25. The court in determining the quality of identification of an accused will consider such factors as the quality of light, the distance where accused was from the witness, the duration of observation and whether there existed any distractions.

26. In this case I find that the incident occurred at night, with many people present and the period of observation by witness not clear. I am satisfied and do find that the conditions for positive identification did not exist and the alleged identification by PW1 Antonina and PW2 Mohamed was not free from possibility of error.

27. In the result I find the prosecution has not proved a charge of murder against the accused Thomas Sifuna alias Edwin beyond reasonable doubt. I therefore find accused not guilty of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code and acquit him under Section 215 C.P.C. The accused Thomas Sifuna alias Edwin be set at liberty unless otherwise lawfully detained.

DATED AT BUNGOMA THIS 10TH DAY OF MAY, 2022S.N RIECHIJUDGE